State ex rel. Hannan v. DeCourcy

• Decision Date: 07 May 1969
• Docket Number: No. 68-628,68-628
• Parties: , 47 O.O.2d 193 The STATE ex rel. HANNAN et al., Appellants, v. DeCOURCY et al., Board of County Commrs. of Hamilton County, Appellees.
• Court: Ohio Supreme Court

Page 73

18 Ohio St.2d 73

247 N.E.2d 465, 47 O.O.2d 193

The STATE ex rel. HANNAN et al., Appellants, v. DeCOURCY et al., Board of County Commrs. of Hamilton County, Appellees.

No. 68-628.

Supreme Court of Ohio.

May 7, 1969.

[247 N.E.2d 466] Syllabus by the Court

1. When a duty is enjoined by statute upon an administrative board to hear and decide an issue within a specific time limitation, it is mandatory that the board act accordingly, unless to do so would lead to an inevitable conflict with rights which are superior to those of the party for whose benefit the duty is to be discharged.

2. The time of filing various petitions with a board of county commissioners for annexation and incorporation of all or part of the same unincorporated territory is not determinative of any priority for the consideration of such petitions.

3. The order of precedence for the consideration of incompatible petitions for incorporation or annexation or both, within the jurisdiction of a board of county commissioners is lodged in the discretionary powers of that agency, subject to applicable statutory time limitations. All concurrent petitions, including those unaffected by temporal limitations, may be considered jointly, or successively, if it is possible to comply with temporal limitations, the presumption being indulged that the board will not arrive at irreconcilable decisions.

The facts are stated in the opinion.

Goodman & Goodman and Sol Goodman, Cincinnati, for appellants.

Melvin G. Rueger, Pros. Atty., and Arthur M. Ney, Cincinnati, for appellees.

SCHNEIDER, Judge.

Within a 27-day period commencing on November 15, 1967, the unincorporated community of Kenwood, in Sycamore Township, Hamilton County, was infected by the presentation to the appropriate local boards Primarily involved here are the incorporation petition and the annexation petition filed by relators as agents for the petitioners. The other two petitions for annexation are described in the margin. ¹

of one petition for incorporation of a village, under that name, and three petitions for annexation of substantially separate portions of the community to two adjacent municipal corporations.

THE INCORPORATION PETITION

At least ten percent of the persons seized of freehold estates residing within an area proposed to be incorporated as the village of Kenwood filed an incorporation petition with the clerk of the board of township trustees on Sunday, November 26, 1967. When that board first took action upon the petition is undisclosed. It is of record that it heard the petition on December 27, 1967. Sometime thereafter, it found that the proposed municipal corporation contained territory within three miles of the boundaries of several existing municipal corporations, in consequence of which it forwarded the petition to the board of county commissioners for further action pursuant to statute.

When the latter body received the petition and when it first took action thereon is also unknown. The record picks up the petition again at a hearing before the board of county commissioners on July 10, 1968, when that board determined that the area proposed for incorporation could reasonably be annexed to nine existing municipal corporations, journalized that finding and forwarded copies thereof to the clerks of the legislative authorities in those nine municipalities.

Before the 90-day period next following had expired on October 8, 1968, four municipalities (Cincinnati, Deer Park, Silverton and Montgomery), by action of their respective legislative authorities, filed with the board of county commissioners and the county board of elections petitions to annex separate portions of the proposed village. Both boards thereupon ordered a vote by the electors of the unincorporated area of the township on the four municipally-proposed annexation issues at the general election on November 5, 1968.

All the acts and proceedings described thus far were taken in complete conformity to the statutes governing incorporation (Section 707.01 et seq., Revised Code) and annexation (Section 709.01 et seq., Revised Code), in effect on and before November 30, 1967.

On December 1, 1967, substantial changes in those statutes, and the proceedings thereunder, became effective by way of extensive amendment and repealers contained in Amended Substitute Senate Bill 220 and Amended Senate Bill 221, of the 107th General Assembly, both of which were approved by the Governor on September 1, 1967. (132 Ohio Laws S 220, S 221.)

No portion of those Acts expressly make them applicable to proceedings pending on their effective date. Consequently, the incorporation petition, as well as the annexation petition still pending (which is described in footnote 1) are governed by the provisions of the statutes as they existed prior to December 1, 1967. Section 1.20, Revised Code; Woodward v. Eberly, 167 Ohio St. 177, 147 N.E.2d 255.

RELATIONS' ANNEXATION PETITION

On December 11, 1967 the tenth day after the amendments to the annexation and incorporated statutes took effect, a majority of adult freeholders in a portion of Kenwood substantially different from that contained in the November 28th annexation petition (but overlapping it in one small area), and nearly wholly within the area of the proposed incorporation, filed their petition with the board of county commissioners to be annexed to the adjacent city of Madeira.

Present Section 709.031, Revised Code (effective December 1, 1967), provides that the 'board of county commissioners shall set the time and place for hearing the petition, which time shall be not less than sixty nor more than ninety days after the petition is filed in the office of the county auditor.' Presumably, this was done immediately upon the filing of the petition with the board. (Present Section 709.03, Revised Code.) Moreover, present Section 709.033, Revised Code (effective December 1, 1967), further provides that the board 'shall grant or deny the petition for annexation within ninety days after the hearing set pursuant to section 709.031 of the Revised Code.'

After their demand for compliance with these commandments applicable to their annexation petition was refused, relators invoked the assistance of the Court of Appeals to secure those rights granted by the new legislation (which rights were unavailable to the proponents of any of the other petitions under the prior legislation) by commencing this action on October 10, 1968, for a writ of mandamus, (1) to order the board to set the hearing on their annexation petition and (2) to cancel the order for an election on Cincinnati's petition (filed in the incorporation petition proceedings before the board of county commissioners) to annex part of the territory included in relators' petition for annexation to Madeira.

The issues were promptly joined by the answer of the respondent board and a demurrer thereto filed by relators. The case was heard and argued forthwith and on October 28, 1968, the court, by journal entry, overruled the demurrer and denied the writ. We hold that the Court of Appeals was correct in permitting the election to proceed, but erred to the prejudice of relators in denying the writ to hold a hearing on their petition for annexation.

It appears to us self-evident that when a duty is enjoined by statute upon an administrative board to hear and decide an issue within specific time limitations, it is mandatory that the board act accordingly, unless to do so would lead to an inevitable conflict with rights which are superior to those of the party for whose benefit the duty is to be discharged. To hold that proposition of law inapplicable to the present case would be to impute to the General Assembly an intention to suspend, even beyond December 1, 1967, the efficacy of the new amendments to the annexation laws and to relegate those having rights under them to a position inferior to those who are not so benefited.

A lack of prescience by the General Assembly has been suggested by counsel for that body's failure to provide a means of resolving possible conflicts between concurrent petitions, some of which would be governed by the old legislation and others by the new. This suggestion overlooks present Section 709.07, Revised Code (effective December 1, 1967), which for the first time provides that an injunction may be obtained by one who shows that an 'annexation would adversely affect the legal rights or interests of the petitioner (for the injunction).' Present Section 709.07(D)(1), Revised Code.

Before the interest of the relators in the annexation of territory to Madeira and the interest of Cincinnati to annex nearly all of the same territory could converage upon an unalterable collision course, several possible events must ripen into certainties. First, the board of county commissioners must find the conditions imposed by present Section 709.033, Revised Code (effective December 1, 1967), and approve the annexation to Madeira. Next, the legislative authority of Madeira must accept the territory. Present Section 709.04, Revised Code (effective December 1, 1967). Only then would it become appropriate or even necessary for Cincinnati to resort to present Section 709.07, Revised Code, claiming that its legal rights or interests were adversely affected by the annexation of relators' territory to Madeira.

However, a decision on this basis would merely defer the resolution of more fundamental questions to a later day and would be inadequate not only to the needs of the present case but also to the future guidance of boards of county commissioners.

The prosecuting attorney took the position before the court below that if all four municipally-proposed petitions for...